The Internet Freedom Foundation*, a digital rights non-profit based in India, has written to Justice AP Shah, Chairman of the IAMAI’s controversial Digital Content Complaints Council (DCCC) and new content code (download), raising concerns about the changes in the code (which we reported here), and the opacity of the process (which we had reported here). Download IFF’s letter here.

The specific concerns raised by IFF:

1. Parallel extra-legal framework giving the government to restrict peoples rights.This restriction, the letter says can happen in two ways: firstly, because the DCCC is designed to have 3 members from national level statutory commissions with the power to impose fines on players. Secondly, because the DCCC is empowered to respond to content related complaints forwarded by multiple government departments. The letter points out that both the Ministries of Information and Broadcasting, and Electronics & IT lack any statutory backing or Court direction, and both have filed counter affidavits in the Delhi High Court in different public interest litigations stating that they do not process such legal powers.

2. Expansion of the scope of the code will hurt creators and dissent: As MediaNama had also pointed out earlier, in comparison to an earlier version of the code (download) the scope of prohibited content has been broadened. The IFF points out that this “goes beyond International Human Rights benchmarks”, “will contribute towards collateral censorship”, and can “stifle dissenting speech and niche modes of creative expression such as political satire.” The letter says that content restrictions could “harm cultural diversity, plurality, and at the same time shrink opportunities for creators”, apart from impoverishing video production that has “a significant cultural impact in challenging majoritarian views which is the necessity in any functioning democracy.”

3. Could lead to industry capture by television broadcasters: It’s worth noting that among the five signatories to the code were Disney owned Hotstar, which has led the effort for the creation of this code, from what we hear, SonyLIV, Network18/Viacom18/VOOT. The letter says that new code has only four signatories – which is incorrect; there are five – and is thus not representative of the entire industry’s views. This, the letter says, could “lead to a capture of the industry by certain incumbent players who primarily come from the more risk averse background of Television broadcast. ” The letter points out that the code was conceived in an opaque manner (which MediaNama had reported on) “where were the primary consideration has been liability reduction at the cost of creativity, diversity and plurality.” It points out that the BCCC code under the Indian Broadcasting Federation has “had a chilling effect on content diversity in television broadcast impacting the artist creativity and audience choices”

The letter also points out the distinction between public and private viewing, and says that it is concerned about an institutionalised system that will develop over time in a nascent sector in which censorship norms are being crafted.

What the letter fails to point out

1. There is already dissent among content companies regarding the opacity of the process with which the new code was created, and also the fact that out of 9 previous signatories to the code, four have chosen to opt out. Justice Shah would be presiding over a Council created in a situation where many members have formally written to the IAMAI, asking for a recall of the new code.

2. That norms created here might also end up applying to other users. While the code explicitly states that it doesn’t apply to user generated content platforms, which are intermediaries, it can eventually also be extended to apply to users of user generated content platforms. The Internet doesn’t distinguish between different types of users, and only considered intermediaries (which are platforms/marketplaces, which enable users), and users. Thus, while an ISP is an intermediary for Netflix, a YouTube is an intermediary for another user. Norms created by this industry, which is keen to separate itself from other users, can be adopted by government or a Court, for them to apply equally to all types of users. It will be a regulatory anomaly for same content to be treated differently if it is uploaded on YouTube by a creator, and if it streamed by Netflix or Hotstar.

3. That existing laws already govern publishing of illegal content, whether it is POCSO, the IT Act (Section 67A, 67B, 67C), the Indian Penal Code, or defamation laws. There is no need to establish a code and a separate regulatory mechanism to enforce it.

*Disclosure: I am a co-founder and a former trustee of the Internet Freedom Foundation